Citation Nr: 9914149
Decision Date: 05/24/99 Archive Date: 06/07/99
DOCKET NO. 95-27 088 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUES
1. Entitlement to service connection for an acquired
psychiatric disorder.
2. Entitlement to an increased (original) evaluation for a
low back disability, currently evaluated as 40 percent
disabling.
REPRESENTATION
Appellant represented by: Luis Vidal Arbona, Attorney
WITNESSES AT HEARING ON APPEAL
Appellant, J. P., F. V., J. A., and J. V., M.D.
ATTORNEY FOR THE BOARD
Bernie Gallagher, Counsel
INTRODUCTION
The appellant had active service from January 1968 to January
1970, and from November 1990 to May 1991.
This matter comes before the Board of Veterans' Appeals (the
Board) on appeal from a January 1995 Hearing Officer's
decision issued by the Department of Veterans Affairs (VA)
Regional Office (RO) in San Juan, Puerto Rico.
REMAND
The veteran has indicated that during the pendency of the
appeal, he was awarded disability benefits by the Social
Security Administration (SSA). However, the SSA records have
not been obtained and considered by the RO. To properly
adjudicate this case, the RO must obtain any notices of
disability, decisions of an administrative law judge, etc.,
pertaining to the appellant that may have been generated in
connection with a claim filed with SSA. See Murincsak v.
Derwinski, 2 Vet. App. 363, 373 (1992).
In addition to the above, the Board finds that because of a
conflict concerning the psychiatric diagnosis, the provisions
of DeLuca v. Brown, 8 Vet. App. 202 (1995) concerning the
effect of pain on function, and the absence of the SSA
records, this case should be remanded to the RO for the
following development:
1. The RO should contact the SSA for the
purpose of obtaining any records from
that agency which pertain to the award of
disability benefits to the veteran. The
RO should obtain copies of award
letters/notices, administrative/appellate
decisions, hearing transcripts, if
applicable, and all medical records
relied upon concerning claims/appeals
filed by the veteran for SSA benefits.
The RO should proceed with all reasonable
follow-up referrals that may be indicated
by the inquiry. All attempts to obtain
records which are ultimately unsuccessful
should be documented in the claims
folder.
2. The veteran should be afforded a
special psychiatric examination. The
claims folder must be made available to
the examiner to review in conjunction with
the examination, including the VA
outpatient records which disclose
treatment for a psychiatric disorder,
variously diagnosed and the report of the
private psychiatrist. The examiner is
asked to indicate in the examination
report that he or she has examined the
claims folder. After the examination, the
examiner should determine whether or not
the veteran currently has a chronic
psychiatric disorder, and if so, whether
it is related to the anxiety noted in
1971, or whether it is related to the
service connected low back disorder. If
the examiner determines it is related to
the anxiety noted in 1971, he should
express an opinion as to whether or not it
was aggravated during the veteran's
Persian Gulf service from November 1990 to
April 1991.
3. The veteran should be afforded a
special VA examination to determine the
severity of his lumbar spine disorder,
considering both the orthopedic and
neurologic aspects. The claims folder
must be made available to the examiner to
review in conjunction with the
examination, and the examiner is asked to
indicate in the examination report that
he or she has examined the claims folder.
All indicated tests are to be performed
and must include range of motion testing.
The examiner should note the range of
motion for the lumbar spine. The
examiner must attempt to obtain active
and passive ranges of motion (in
degrees), state if there is any
limitation of function and describe it,
and state the normal range of motion.
Whether there is any pain, weakened
movement, excess fatigability or
incoordination on movement should be
noted, and whether there is likely to be
additional range of motion loss due to
any of the following should be addressed:
(1) pain on use, including during flare-
ups; (2) weakened movement; (3) excess
fatigability; or (4) incoordination.
The examiner is asked to describe whether
pain significantly limits functional
ability during flare-ups or when the
lumbar spine is used. Special attention
should be given to the presence or
absence of pain, stating at what point in
the range of motion pain occurs and at
what point pain prohibits further motion.
The factors upon which the opinions are
based must be set forth. The examiner
should express an opinion as to whether
the service-connected lumbar spine
disorder interferes with functions,
including walking, turning, arising from
a seated position, and bowel and bladder
problems. In addition, the examiner
should determine if the veteran has
symptoms compatible with sciatic
neuropathy and report any such findings.
The examiner should provide a complete
rationale for all conclusions reached and
explain the loss of mobility reported in
the above examinations.
4. After the above development has been
completed, the RO should readjudicate the
veteran's claims for service connection
for a psychiatric disorder and an
increased disability rating for a low
back disorder.
5. If the decision with respect to any
claim remains adverse to the appellant,
he and his attorney should be furnished a
supplemental statement of the case and
afforded a reasonable period of time
within which to respond thereto.
Then, the claims folder should be
returned to the Board following
appropriate procedure. The veteran need
take no action until he is so informed.
He is, however, free to submit additional
evidence or argument to the RO on remand.
Quarles v. Derwinski, 3 Vet. App. 129
(1992); Booth v. Brown, 8 Vet. App. 109
(1995); and Falzone v. Brown, 8 Vet.
App. 398 (1995). The purpose of this
REMAND is to obtain additional
information and to comply with all due
process considerations.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
CHRISTOPHER P. KISSEL
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims (known as the United
States Court of Veterans Appeals prior to March 1, 1999).
This remand is in the nature of a preliminary order and does
not constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).